Court Says The Process For Getting Off The No Fly List Is Unconstitutional

from the well-that's-a-big-deal dept

We've had a few stories recently about legal challenges to the No Fly List in the United States. Just a couple months ago, for the first time, the US government was ordered to tell someone they were not on the No Fly List, though that person was still kept in various other terrorist watch lists/databases. Soon after that, we wrote about a new legal challenge to the No Fly List, involving some men who were basically harassed, with the FBI threatening to put them on the No Fly List if they didn't become informants.

The judge ordered the government to create a new process that remedies these shortcomings, calling the current process “wholly ineffective” and a violation of the Fifth Amendment's guarantee of due process. The ruling also granted a key request in the lawsuit, ordering the government to tell the ACLU’s clients why they are on the No Fly List and give them the opportunity to challenge their inclusion on the list before the judge.

The full ruling is worth reading as it goes into significant detail and analysis, including digging into the Rahinah Ibrahim case we mentioned above. In the end, the court is pretty clear that putting someone on the No Fly List clearly deprives them of their rights:

In summary, on this record the Court concludes the DHS TRIP
process presently carries with it a high risk of erroneous
deprivation in light of the low evidentiary standard required for
placement on the No-Fly List together with the lack of a
meaningful opportunity for individuals on the No-Fly List to
provide exculpatory evidence in an effort to be taken off of the List.

Of particular importance is the fact that people placed on the list are not told about it, let alone told why they've been put on the list. And when combined with the "low evidentiary standard" mentioned above, the court sees a problem:

Defendants' failure to provide any notice of the
reasons for Plaintiffs' placement on the No-Fly List is
especially important in light of the low evidentiary standard
required to place an individual in the TSDB in the first place.
When only an ex parte showing of reasonable suspicion supported
by "articulable facts
taken together with rational
inferences" is necessary to place an individual in the TSDB, it
is certainly possible, and probably likely, that "simple factual
errors" with "potentially easy, ready, and persuasive
explanations" could go uncorrected.

Given all that, the court has significant problems with the overall nature of the program:

As discussed herein at length, the DHS TRIP process does not
provide a meaningful mechanism for travelers who have been denied
boarding to correct erroneous information in the government's
terrorism databases.
A traveler who has not been given any
indication of the information that may be in the record does not
have any way to correct that information. As a result, the DHS
TRIP process "entirely fail[s] to consider an important aspect"
of Congress's instructions with respect to travelers denied
boarding because they are on the No-Fly List.

The Court doesn't toss out the program, but orders DHS to "remedy" the situation by coming up with a new process to guarantee that people on the No Fly List have due process to get off the list. There still are reasonable questions as to how such a general list could be legal at all in the first place, but this ruling would seem to take a big step towards at least allowing a real process to be in place to get people off the list. Of course, it's fairly likely that the US government will appeal this ruling, but at least this is a small bit of good news in the meantime.

here's hoping the court expands that removal process to cover ALL watchlists. Otherwise someone will be on the no-fly list because they're on another terrorist watch list. They can get removed from the no-fly list any time, but since they can't get off that other watchlist, they get put right back on the no-fly list.

Re: Re: The Government's Response

Re: Re: Re: The Government's Response

That certainly would have been annoying... "The ferry operator takes your money but refuses to grant passage since you are on the 'No-Ferry' list. Would you like to travel to the nearest fort to try to get removed from the list, attempt to ford the river, caulk your wagon and float it across, or just give up and go back to Missouri?"

not enough

The Court doesn't toss out the program, but orders DHS to "remedy" the situation by coming up with a new process to guarantee that people on the No Fly List have due process to get off the list.

How about due process to get ON the list? There ought to be notification, an adversarial hearing and a finding by a judge( or jury?) before one gets put on a list. The way I read the 5th amendment is that due process is necessary BEFORE one is deprived of liberties, not after.

"The judge ordered the government to create a new process that remedies these shortcomings, calling the current process “wholly ineffective” and a violation of the Fifth Amendment's guarantee of due process."

"[W]e wrote about a new legal challenge to the No Fly List, involving some men who were basically harassed, with the FBI threatening to put them on the No Fly List if they didn't become informants."

Sounds to me like the process of getting off the no fly list isn't the only corrupt one. Maybe the process of how people get on the list should be examined too.

I know it's natural for the Supremes to imagine only sparkly unicorn farts can result from the majesty of the adversarial legal process, but giving people due process rights to individually challenge their inclusion on a secret government enemies list, but not until they've already been subject to denial of travel and possible detainment... kinda minimally warm and fuzzy about this one.

No problem

You are hereby informed that you have been placed on the no fly list because you [XXXXXRedactedXXXXX] and [XXXRedactedXXX] [Redacted] and because of your actions related to [XXXXXRedactedXXXXX] and [XXXRedactedXXX].

All you have to do is provide a satisfactory reason why the above does not prove beyond the slightest doubt that you are a terrorist and we'll definitely seriously consider finding additional reasons to keep you on the no fly list.

NoFlyList_V1.1

" Of course, it's fairly likely that the US government will appeal this ruling, but at least this is a small bit of good news in the meantime."

More likely they'll just start up a new secret No-Fly List and transfer everyone to the new list and then do a public lip-service routine on all those people, letting them all think they've managed to become free of the list.